Keeping up with the laws that impact employers and employees is a daunting task indeed. The Patient Protection and Affordable Care Act (also known as Health Care Reform) has within it many new requirements for employers, some of which translate into benefits for employees. Section 4207 of the Health Care Reform Act is one such section. It states that employers shall provide breastfeeding employees with “reasonable break time” and a private, non-bathroom place to express breast milk during the workday, up until the child’s first birthday. Although this is an unpaid break, the employer is required to provide the place for the employee to express breast milk during the workday.

There are several states that already have mandatory breaks for breastfeeding mothers. Oklahoma’s law is not mandatory, however. See 40 O.S. 435. However, employers with multi-state business operations may be subject to varying state laws on this subject, some of which provide greater protection than the Federal law.

Who is in charge of enforcing this law?

This section of the Health Care Reform Act is an amendment to the existing wage and overtime laws governed by the Fair Labor Standards Act (FLSA). The Department of Labor will be responsible for defining the terms of the new law and we expect they will issue regulations providing additional guidance.

What employers are covered?

All employers are covered. Period. However, employers with under 50 workers are not required to comply if they show compliance would result in “an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”

What employees are covered?

This law applies to non-exempt employees.

Employees exempt from the overtime provisions of the FLSA (“exempt employees”) are not covered.

What do I have to do to be in compliance?

This amendment is effective immediately meaning you have to comply now. While it may be difficult to comply given what little guidance the Federal statute provides, until the regulations are issued, it is wise to lend a reasonable interpretation to all requirements.

Eventually, the Department of Labor will define terms used in the law, such as “reasonable break time” and “significant difficulty or expense,” however until that time state regulations governing this subject are likely the best place to look in making a determination of whether you have complied with the law. For instance, in Oregon the time provisions have been defined as a 30-minute break in every four-hour work period to occur in a private location. It is unlikely that the Federal regulations will provide less than the thirty minute break. Further, it is the employee that gets to decide when to take these breaks.

As for privacy, the Act requires the employer provide a place that is “shielded from view” and “free from intrusion from coworkers and the public.” Further, and importantly, the law specifically outlaws the designation of a bathroom for this purpose. However, the law does not further define this requirement of privacy. It is important to keep in mind, the job duties of a covered employee do not necessarily result in exemption from compliance with the law. While some employers will be able to show “an undue hardship by causing the employer significant difficulty or expense,” you must remember this is balanced with an evaluation of “the size, financial resources, nature, or structure of the employer’s business.” The law applies to all employers and it will likely be difficult to meet the above test for exemption. This is a law that will require employers to be flexible, accommodating and in some instances creative.

Why is it important to enact this at my workplace and how should I do it?

This mandatory break time is now a right for non-exempt breastfeeding working mothers. Federal law requires employers to provide this break time, and employers will be subject to a variety of penalties for failing to comply with this law. Employers should review their policies and procedures manuals governing break times. Employers should make managers and supervisor aware that employees have a right to take this break for up to one year following the birth of a child. Employers should designate places that can be used for this purpose. The employer need not create a special place for this break, as long as the place(s) designated are not a bathroom, and is a place “shielded from view” and “free from intrusion from coworkers and the public” during the employee’s break.

By McLaine DeWitt Herndon, mherndon@dsda.com

NOTE: For more about the new health care law, see the article featured in the April 2010 Healthcare Provider’s Legal Resource by clicking here.